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FILED: NASSAU COUNTY CLERK 12/29/2023 05:32 PM INDEX NO. 614134/2023
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/29/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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ALK PROPERTIES, LLC, Index No.: 614134/2023
Plaintiff,
AFFIRMATION IN
OPPOSITION
- against -
ATHOS PATSALIDES and EFSTATHIA TZATHA,
Defendants.
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BRADLEY R. SIEGEL, ESQ., an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms the following under the penalties of perjury:
1. I am the Principal of the Siegel Law Firm, P.C., attorneys for the Plaintiff, ALK
PROPERTIES, LLC (“Plaintiff”), and as such, I am fully familiar with all of the facts,
circumstances and proceedings heretofore had herein from my personal involvement and review
of the files that my office maintains.
2. I submit this Affirmation in opposition to Defendants, ATHOS PATSALIDES
(“Patsalides”) and EFSTATHIA TZATHA (“Tzatha”) (collectively “Defendants”) Motion to
Dismiss this action pursuant to CPLR 3211(a)(7). As set forth herein, Defendants’ motion is
without merit, and should be dismissed in its entirety.
BACKGROUND
3. A brief recitation of the facts of this matter are set forth below, with the full
recital of Plaintiff’s allegations more fully set forth in Plaintiff’s Verified Complaint, a copy of
which is annexed as Exhibit “A”.
4. The parties entered into a lease agreement dated May 2, 2021 (the “Lease”) for
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the rental of the real property located at 10 High Meadow Court, Old Brookville, NY 11545 (the
“Premises”).
5. The Lease provides for Defendants to pay the monthly sum of $12,250.00, for a
lease term of one year, ending on May 31, 2022.
6. The Lease provided for a one-year lease renewal option, with a monthly rent
increase of three percent (3%) (the “Renewal”).
7. On March 6, 2022, Patsalides informed Plaintiff, in writing, that Defendants were
executing the lease Renewal option.
8. On March 11, 2022, Plaintiff, through counsel, informed Defendants that the lease
Renewal option was accepted by Plaintiff.
9. Despite the clear terms of the Lease Renewal, on or about August 31, 2022,
Defendants vacated the Premises, and moved into a home that they purchased on or about
August 12, 2022, located at 57 Dogleg Lane, Roslyn Heights, NY 11577.
10. Defendants failed, refused, or otherwise neglected to pay any of the rent for
August 2022 through May 2023, for a total period of ten (10) months, totaling an outstanding
sum of $126,175.00.
11. At the time that Defendants forwarded written notice of their intent to renew the
lease, they did not intend to honor the full year lease Renewal period, but rather, were using the
Renewal period as a means to stay in the Premises for a short duration for their own gain.
12. Knowing that the original lease term was scheduled to expire, Plaintiff took
efforts to place the Premises on the market for sale, with the intent to sell the Premises shortly
after the Defendants vacated.
13. As a result, Plaintiff rejected an offer of $2,700,000 for the sale of the Premises in
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order to comply with the terms of the Renewal.
LEGAL ARGUMENT
Motion to Dismiss Standard
14. A motion to dismiss pursuant to CPLR3211(a)(7) will fail if, taking all facts
alleged as true and according them every possible inference favorable to the plaintiff, the
complaint states in some recognizable form any cause of action known at law. Shaya B. Pacific,
LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 36 A.D.3d 34 (2d Dept. 2006).
15. On a motion to dismiss a complaint for failure to state a cause of action, the
pleading is to be afforded a liberal construction. The Court must accept the facts as alleged in
the complaint as true, accord the plaintiff the benefit of every possible inference, and determine
whether the facts as alleged fit within any cognizable legal theory. Sarva v. Self Help
Community Services, Inc., 73 A.D.3d 1155 (2d Dept. 2010).
16. Whether the complaint will later survive a motion for summary judgment, or
whether the plaintiff will ultimately be able to prove its claim is irrelevant to the determination of
a motion to dismiss. Id.
Plaintiff Adequately Pleads Fraud With Sufficient Particularity
17. Defendants argue that the Complaint fails to allege with specificity the material
misrepresentation or knowledge of falsity because “Plaintiff does not state when or how such
alleged misrepresentation was made by defendants or the specific words spoken.” Petras Affirm.
¶5.
18. However, immediately preceding this argument, Defendants acknowledge that the
Complaint does, indeed, provide allegations that Defendants intentionally misrepresented to
Plaintiff that they intended to remain in the Premises through May 31, 2023 despite knowing that
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they would be purchasing real property and had no intention of remaining in the Premises
through May 31, 2023.
19. Contrary to Defendants’ argument, the Complaint does provide when and how the
misrepresentations were made. Specifically, the Complaint clearly alleges that Patsalides
informed Plaintiff, in writing, via e-mail, on March 6, 2022, that Defendants would be executing
the lease Renewal option. Compl. ¶¶ 9, 35. A copy of the e-mail reflecting the exact statements,
which are those that are pleaded in the Complaint, is annexed hereto as Exhibit “B”.
20. As can be seen by the e-mail attached as Exhibit “B”, the Complaint does indeed
set forth the actual statements made by the Defendants, with the date those statements were
made.
21. Defendants’ argument that Plaintiff did not rely upon Defendants’ intentional
misrepresentation, and that the reliance was reasonable or justified similarly fails. First, all that
is required at the motion to dismiss stage is for the reliance to be pled. Paragraph 37, sufficiently
alleges that Plaintiff relied upon Defendants’ misrepresentations and that it was reasonably
justified to rely on those misrepresentations.
22. Defendants’ argument that it was not reasonable to rely upon Defendants’
misrepresentations that they intended to comply with the Renewal lease term is similarly without
merit. In essence, Defendants argue that simply because they informed the Plaintiff they
intended to abide by the Renewal lease term, there was no guarantee that they would.
23. Defendants’ argument, if accepted, would make it such that it would never be
reasonable to rely upon the obligations of a lease agreement, or other written contract.
24. The entire purpose of lease agreements, and other written agreements, are so that
the parties can rely upon the terms set forth in those written agreements. While not guaranteed,
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it is more than reasonable to expect parties to comply with their agreed upon obligations in a
lease.
Plaintiff’s Fraud and Breach of Contract Claims Are Not Duplicative
25. A cause of action for fraud may be maintained where a plaintiff pleads a breach of
duty separate from, or in addition to, a breach of contract. J&D Evans Constr. Corp. v. Iannucci,
84 A.D.3d 1171 (2d Dept. 2011).
26. In this matter, the causes of action for fraud and breach of contract arise from
breaches of separate duties of the Defendants.
27. Plaintiff’s fraud claim arises based upon the misrepresentations made by
Defendants to Plaintiff that they were exercising the lease Renewal option, and intended to reside
in the Premises for the duration of the lease term.
28. Because Defendants informed Plaintiff that they intended to reside in the
Premises during the duration of the Renewal term, Plaintiff took actions with the understanding
that the Defendants would be residing in the Premises. For example, the Plaintiff did not accept
offers for sale of the Premises and withdrew the Premises from the market for sale.
29. Had Defendants informed Plaintiff of their true intentions, that they were only
intending to reside in the Premises for a few months past the original lease expiration term,
Plaintiff could have made arrangements to ensure that the Defendants could stay in the Premises
for that short duration, and schedule a closing date to accommodate the Defendants.
30. Instead, Defendants defrauded Plaintiff, and Plaintiff was left without being able
to sell the Premises.
31. In connection with Defendants’ breach of contract, Defendants breached their
obligation to pay Plaintiff the full amount of rent due for the duration of the lease term. ,As a
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result of Defendants’ breach of contract, the Plaintiff was deprived of the rental income that was
being relied upon.
Plaintiff Tortious Interference Claims
32. In the spirit of judicial economy and good faith, Plaintiff agrees to withdraw,
without prejudice, the claims for tortious interference.
WHEREFORE, it is respectfully requested that this Court deny Kaplan’s Motion in its
entirety, and grant to Plaintiff such other and further relief as this Court may deem just, proper
and equitable.
Dated: Garden City, New York
December 29, 2023
/s Bradley R. Siegel
BRADLEY R. SIEGEL, ESQ.
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Preview
FILED: NASSAU COUNTY CLERK 12/29/2023 05:32 PM INDEX NO. 614134/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/29/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU -------------------------------------------------------------------------X ALK PROPERTIES, LLC, Index No.: 614134/2023 Plaintiff, AFFIRMATION IN OPPOSITION - against - ATHOS PATSALIDES and EFSTATHIA TZATHA, Defendants. --------------------------------------------------------------------------X BRADLEY R. SIEGEL, ESQ., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am the Principal of the Siegel Law Firm, P.C., attorneys for the Plaintiff, ALK PROPERTIES, LLC (“Plaintiff”), and as such, I am fully familiar with all of the facts, circumstances and proceedings heretofore had herein from my personal involvement and review of the files that my office maintains. 2. I submit this Affirmation in opposition to Defendants, ATHOS PATSALIDES (“Patsalides”) and EFSTATHIA TZATHA (“Tzatha”) (collectively “Defendants”) Motion to Dismiss this action pursuant to CPLR 3211(a)(7). As set forth herein, Defendants’ motion is without merit, and should be dismissed in its entirety. BACKGROUND 3. A brief recitation of the facts of this matter are set forth below, with the full recital of Plaintiff’s allegations more fully set forth in Plaintiff’s Verified Complaint, a copy of which is annexed as Exhibit “A”. 4. The parties entered into a lease agreement dated May 2, 2021 (the “Lease”) for 1 1 of 6 FILED: NASSAU COUNTY CLERK 12/29/2023 05:32 PM INDEX NO. 614134/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/29/2023 the rental of the real property located at 10 High Meadow Court, Old Brookville, NY 11545 (the “Premises”). 5. The Lease provides for Defendants to pay the monthly sum of $12,250.00, for a lease term of one year, ending on May 31, 2022. 6. The Lease provided for a one-year lease renewal option, with a monthly rent increase of three percent (3%) (the “Renewal”). 7. On March 6, 2022, Patsalides informed Plaintiff, in writing, that Defendants were executing the lease Renewal option. 8. On March 11, 2022, Plaintiff, through counsel, informed Defendants that the lease Renewal option was accepted by Plaintiff. 9. Despite the clear terms of the Lease Renewal, on or about August 31, 2022, Defendants vacated the Premises, and moved into a home that they purchased on or about August 12, 2022, located at 57 Dogleg Lane, Roslyn Heights, NY 11577. 10. Defendants failed, refused, or otherwise neglected to pay any of the rent for August 2022 through May 2023, for a total period of ten (10) months, totaling an outstanding sum of $126,175.00. 11. At the time that Defendants forwarded written notice of their intent to renew the lease, they did not intend to honor the full year lease Renewal period, but rather, were using the Renewal period as a means to stay in the Premises for a short duration for their own gain. 12. Knowing that the original lease term was scheduled to expire, Plaintiff took efforts to place the Premises on the market for sale, with the intent to sell the Premises shortly after the Defendants vacated. 13. As a result, Plaintiff rejected an offer of $2,700,000 for the sale of the Premises in 2 2 of 6 FILED: NASSAU COUNTY CLERK 12/29/2023 05:32 PM INDEX NO. 614134/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/29/2023 order to comply with the terms of the Renewal. LEGAL ARGUMENT Motion to Dismiss Standard 14. A motion to dismiss pursuant to CPLR3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known at law. Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 36 A.D.3d 34 (2d Dept. 2006). 15. On a motion to dismiss a complaint for failure to state a cause of action, the pleading is to be afforded a liberal construction. The Court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible inference, and determine whether the facts as alleged fit within any cognizable legal theory. Sarva v. Self Help Community Services, Inc., 73 A.D.3d 1155 (2d Dept. 2010). 16. Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claim is irrelevant to the determination of a motion to dismiss. Id. Plaintiff Adequately Pleads Fraud With Sufficient Particularity 17. Defendants argue that the Complaint fails to allege with specificity the material misrepresentation or knowledge of falsity because “Plaintiff does not state when or how such alleged misrepresentation was made by defendants or the specific words spoken.” Petras Affirm. ¶5. 18. However, immediately preceding this argument, Defendants acknowledge that the Complaint does, indeed, provide allegations that Defendants intentionally misrepresented to Plaintiff that they intended to remain in the Premises through May 31, 2023 despite knowing that 3 3 of 6 FILED: NASSAU COUNTY CLERK 12/29/2023 05:32 PM INDEX NO. 614134/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/29/2023 they would be purchasing real property and had no intention of remaining in the Premises through May 31, 2023. 19. Contrary to Defendants’ argument, the Complaint does provide when and how the misrepresentations were made. Specifically, the Complaint clearly alleges that Patsalides informed Plaintiff, in writing, via e-mail, on March 6, 2022, that Defendants would be executing the lease Renewal option. Compl. ¶¶ 9, 35. A copy of the e-mail reflecting the exact statements, which are those that are pleaded in the Complaint, is annexed hereto as Exhibit “B”. 20. As can be seen by the e-mail attached as Exhibit “B”, the Complaint does indeed set forth the actual statements made by the Defendants, with the date those statements were made. 21. Defendants’ argument that Plaintiff did not rely upon Defendants’ intentional misrepresentation, and that the reliance was reasonable or justified similarly fails. First, all that is required at the motion to dismiss stage is for the reliance to be pled. Paragraph 37, sufficiently alleges that Plaintiff relied upon Defendants’ misrepresentations and that it was reasonably justified to rely on those misrepresentations. 22. Defendants’ argument that it was not reasonable to rely upon Defendants’ misrepresentations that they intended to comply with the Renewal lease term is similarly without merit. In essence, Defendants argue that simply because they informed the Plaintiff they intended to abide by the Renewal lease term, there was no guarantee that they would. 23. Defendants’ argument, if accepted, would make it such that it would never be reasonable to rely upon the obligations of a lease agreement, or other written contract. 24. The entire purpose of lease agreements, and other written agreements, are so that the parties can rely upon the terms set forth in those written agreements. While not guaranteed, 4 4 of 6 FILED: NASSAU COUNTY CLERK 12/29/2023 05:32 PM INDEX NO. 614134/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/29/2023 it is more than reasonable to expect parties to comply with their agreed upon obligations in a lease. Plaintiff’s Fraud and Breach of Contract Claims Are Not Duplicative 25. A cause of action for fraud may be maintained where a plaintiff pleads a breach of duty separate from, or in addition to, a breach of contract. J&D Evans Constr. Corp. v. Iannucci, 84 A.D.3d 1171 (2d Dept. 2011). 26. In this matter, the causes of action for fraud and breach of contract arise from breaches of separate duties of the Defendants. 27. Plaintiff’s fraud claim arises based upon the misrepresentations made by Defendants to Plaintiff that they were exercising the lease Renewal option, and intended to reside in the Premises for the duration of the lease term. 28. Because Defendants informed Plaintiff that they intended to reside in the Premises during the duration of the Renewal term, Plaintiff took actions with the understanding that the Defendants would be residing in the Premises. For example, the Plaintiff did not accept offers for sale of the Premises and withdrew the Premises from the market for sale. 29. Had Defendants informed Plaintiff of their true intentions, that they were only intending to reside in the Premises for a few months past the original lease expiration term, Plaintiff could have made arrangements to ensure that the Defendants could stay in the Premises for that short duration, and schedule a closing date to accommodate the Defendants. 30. Instead, Defendants defrauded Plaintiff, and Plaintiff was left without being able to sell the Premises. 31. In connection with Defendants’ breach of contract, Defendants breached their obligation to pay Plaintiff the full amount of rent due for the duration of the lease term. ,As a 5 5 of 6 FILED: NASSAU COUNTY CLERK 12/29/2023 05:32 PM INDEX NO. 614134/2023 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 12/29/2023 result of Defendants’ breach of contract, the Plaintiff was deprived of the rental income that was being relied upon. Plaintiff Tortious Interference Claims 32. In the spirit of judicial economy and good faith, Plaintiff agrees to withdraw, without prejudice, the claims for tortious interference. WHEREFORE, it is respectfully requested that this Court deny Kaplan’s Motion in its entirety, and grant to Plaintiff such other and further relief as this Court may deem just, proper and equitable. Dated: Garden City, New York December 29, 2023 /s Bradley R. Siegel BRADLEY R. SIEGEL, ESQ. 6 6 of 6